No Picture-Perfect Vote

“Later that day, Karan visited a second polling station. He claimed that when he attempted to document the closing of the polling place, police were called and claimed he was trespassing, and that he avoided arrest by leaving the premises.” The real reason the police were called, according to the registrar, was that Karan was bothering poll workers with constitutional questions and making it difficult for them to do their work.

This version of events suggests that the registrar was backing away from the policy to prevent photography in polling stations. Nevertheless, the courts, both superior and appellate, found the policy reasonable. They argued that the presence of someone taking pictures in the polling place could intimidate voters. But Karan insists that his only intention in using cameras in polling places is to document the security of the ballots. He understands, he says, that pointing a camera at people even before they enter to vote might very well scare them away. But he believes that taking pictures of poll workers doing their jobs and of their equipment is easily accomplished without intimidating voters.

The debate between Karan and the courts centered as well on whether polling stations are public places. The courts relied on a position established by the U.S. Supreme Court that the speech of election campaigners can be restricted within 100 feet of polling stations. That establishes polling stations as nonpublic places. Thus, reasoned the appeals court, photography can be restricted within them too. Karan, however, argues that polling places are public places. Within them one finds the nonpublic voting booths in which voters are entitled to cast their ballots privately. Outside the booths, free speech reigns, including the use of cameras, as long as the expression does not amount to political campaigning.

On the issues of sealing ballots and reconciling ballot and voter counts, the courts found that the registrar of voters already has in place procedures, training, and review that are adequate.

But Karan is disappointed that the courts seem “more interested in stability than voting transparency.” He quotes a statement attributed to Joseph Stalin: “It is enough that the people know there was an election.”

Comments

For the record: Ms. Poniktera complained that, given the experience of other citizens being faced with arrest for trespassing at a public election, she is herself facing the risk of arrest for doing what, in a more enlightened time, would be laudatory: protecting the process by which citizens make themselves free of tyranny.
Photography in elections is just one way citizens have of documenting elections. Documentation ensures transparency, promotes accountability, and creates evidence instead of anecdotes. Documenting the security of the ballots is only one important part of a transparent election. Few voters consider what happens to their ballot after dropping it in a box. Spoiling a ballot is as easy as marking a second vote where only one is permitted.
The seals on a piece of cardboard referred to in the article were not as described. These seals are required by state and federal law to remain in place over the memory cards being used with electronic voting machines. The fact that the seals were removed and placed on a piece of cardboard is evidence that security had been breached and the machines tampered with.
The first threat of arrest occurred while standing in a driveway at a polling place. The second occurred after the polls had closed. It is this occasion during which a 17 year old poll worker is recorded as telling police that the registrar instructed him to call police if a citizen election observer returned with a camera. Photography at a polling place is permitted by the registrar’s own policies after the polls have closed.
Citizens are not required to obtain a license from a government lawyer to exercise free speech rights.
In this case, no one debated poll workers over constitutional issues.
Citizen Election Observers do not believe that cameras at polling places might scare voters away. They do recognize that some people, however irrational, might find it offensive to have their photographs taken in a public setting. People are under surveillance in an ever-growing number of public places. They still go out in public.
The appeal concedes that burdening free speech with some regulation of photography is permissible, but only if it is narrowly tailored to serve a compelling state interest such as preventing fraud or voter intimidation, and preserving the secrecy of a ballot. Having a pleasant experience at the polls is not a compelling state interest.
If the registrar’s procedures and training were adequate, the lawsuit filed would not have been necessary.
The quote attributed to Stalin expresses the sentiment among dictators that it is enough to hold an election, even if it is just theater, to keep citizens sullen but not hostile to authorities. Without transparency and the ability to verify the results, our elections are no better than theater.

The courts relied on a position established by the U.S. Supreme Court that the speech of election campaigners can be restricted within 100 feet of polling stations. That establishes polling stations as nonpublic places

Having speech restricted does not mean it is not a public forum.

There are all sorts of time, place and manner restrictions on public forums.

SurfPuppy is partly correct. However, simply because a regulation that burdens free speech is found to be constitutional does not mean that the forum in which the speech is regulated is a nonpublic forum. The Burson decision referred to explicitly holds that the area around the voting compartments is a public forum subject to strict scrutiny analysis. The lead opinion in Burson is derived from a strict scrutiny analysis. The holding is that burdening campaigning within 100 feet of a polling place is constitutional because it is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. However, the activity being restricted by government in this case is not campaigning. The activity here is functionally compatible with the voting process. Therefore, a total ban on the ability of citizens to document government conduct which does not interfere with the ability to cast a secret ballot neither serves a compelling state interest nor is narrowly drawn to serve whatever interest the government claims justifies the ban.
Citizens need to understand their rights. Read the California Constitution, article II, section 2.5, and Elections Code sections 2300 and 15702.